Case considers whether Facebook “likes” are protected by the First Amendment

Is a Facebook “like” considered free speech? One Virginia sheriff’s deputy who lost his job over one certainly thinks so.

Hampton, Va. Sheriff B.J. Roberts fired six of his employees for supporting his political rival during a 2009 election, including Daniel Ray Carter Jr., who gave his internet thumbs-up to the Facebook page “Jim Adams for Hampton Sheriff.”

Carter claimed that a Facebook like should be protected under the First Amendment right to free speech, but a Virginia district court felt differently. The court said in its May ruling that activity can’t be considered free speech if the person doesn’t actually say anything.

Carter is down, but not out yet. He filed an appeal last week, and is waiting for the sheriff’s lawyers to respond. Briefs filed supporting his appeal argue that existing law has a different definition of free speech.

"The judge is wrong in the sense that the Facebook button actually says the word 'like,' so there are actually words being used," said Aden Fine, a senior staff attorney with the American Civil Liberties Union, which has filed one such brief. "And there's a thumbs-up symbol, which most people understand means they, literally, like something."

Facebook has also filed a brief supporting Carter, saying that a like for a political candidate is "the 21st-century equivalent of a front-yard campaign sign."